Jan 08 2018

DHS postpones threats of REAL-ID Act enforcement

Again postponing its threats to interfere with air travel by residents of “noncompliant” states, the Department of Homeland Security announced today that it has given the last three remaining states either certifications of “compliance” with the REAL-ID Act of 2005, or extensions of time to comply until at least October 10, 2018.

Travelers in all 50 states can continue to ignore the false signs at airports, the false claims being made by state authorities collaborating with the Feds in the national ID scheme, and the blizzard of confused  and error-filled news stories (largely based on unverified and misleading DHS and state government press releases) claiming that U.S. citizens will need to obtain, carry, or show passports or other government-issued ID in order to travel by air.

This does not mean that all or most states have actually complied with the REAL-ID Act or are planning to do so. At most 14 states are arguably compliant with the Federal law.

The plain language of the Federal law requires that, “To meet the requirements of this section, a State shall … Provide electronic access to all other States to information contained in the motor vehicle database of the State.”  Only 14 states are participating in the outsourced SPEXS national ID database set up to enable this nationwide data access:

In addition to the 14 current SPEXS particpants, the contractor managing the national ID database optimistically lists 4 other states as “actively working on implementation.” But none of these states are listed as having signed letters of intent  to join the SPEXS national ID database.

The other 32 states are not compliant with the data-sharing provision of the REAL-ID Act, and have given no indication of intent to comply.

What will happen next?

Most likely, most states will continue not to comply, and will call the DHS bluff again.

The Federal government has no Constitutional authority to force states to comply with the REAL-ID Act, and admits that compliance by states is voluntary.  Compliance would be expensive, and would take time. It took ten years after the REAL-ID Act was passed befotre the national database was ready for the first (small) states to upload their data. Many state residents and state legislators don’t want  their drivers license and state ID information sent to an unaccountable private national ID data aggregator. Compliance by some states including California would be contrary to their state constitutions.

Most likely, the DHS will exercise its discretion to grant further extensions and postpone its threats of “enforcement” (interference with air travel by residents of insufficiently compliant states) beyond the current October 10, 2018, threat date.

The October 10, 2018, threat date appears in no law or regulation. It is purely a creation of DHS discretion, part of a longstanding pattern of DHS rulemaking-by-press-release.

The actual “deadline” for state compliance set by the most recently revised DHS regulations for implementation of the REAL-ID Act is  October 1, 2020 (not 2018). But that date could be, and probably will be, postponed again by the DHS merely by publishing revised regulations, as has been done repeatedly since the original REAL-ID Act regulations were promulgated setting a “deadline” of May 11, 2011.

More importantly, what will happen if the DHS eventually decides not to postpone its self-imposed “deadline” again? What if it decides not to issue yet another round of bogus “certifications of compliance” to states that aren’t sharing their drivers licenses and ID databases and that no court could possible find to be in “compliance” with the Federal law? What if it decides not to grant more discretionary extensions of time to states that don’t even claim to have complied with the REAl-ID Act?

Propably, nothing, unless the DHS and TSA also decide — as to date they have wisely and repeatedly decided not to do — to embark on a flagrantly unlawful and unconstitutional campaign of interference with “the right of the people… peacably to assemble”.

Neither the REAL-ID Act nor any other current or proposed Federal law or regulation requires air travelers within the USA to show any ID to fly. The rights to freedom of movement and assembly are guaranteed by the First Amendment and by international human rights treaties to which the US is a party. The right to travel by air by common carrier is specifically guaranteed by Federal law. Any interference with these rights would pormpt massive public resistance, as well as litigation that the DHS would likely lose.

In practice, as the TSA disclosed in response to one of our FOIA requests, hundreds of people fly every day without ID or with ID that TSA checkpoint staff initially find “unacceptable”. Nothing in the REAL-ID Act would change this.

Eventually, Congress will need to repeal the REAL-ID Act. But in the meantime, don’t be panicked by deliberately misleading government propaganda that misstates the law and the facts, sloppily researched news reports, and threats that lack any basis in law.

4 thoughts on “DHS postpones threats of REAL-ID Act enforcement

  1. Pingback: All the fake news that’s fit to print about REAL-ID and ID to fly | Papers, Please!

  2. Pingback: DHS threatens to harass American Samoan travelers | Papers, Please!

  3. Pingback: DHS still usings American Samoans as “REAL-ID” guinea pigs | Papers, Please!

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